Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1706
NANA TOURE,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Mark B. Laroche, on brief, for petitioner.
Nancy E. Friedman, Office of Immigration Litigation, Civil
Division, United States Department of Justice, with whom Peter D.
Keisler, Assistant Attorney General, and Carl H. McIntyre, Jr.,
Senior Litigation Counsel, were on brief, for respondent.
February 3, 2005
Per Curiam. Petitioner Nana Toure ("Toure") appeals the
Board of Immigration Appeals's ("BIA") summary affirmance of an
Immigration Judge's denial of her applications for asylum,
withholding of removal, and relief under the Convention Against
Torture. We affirm.
I. Background
Toure is a native and citizen of Guinea who entered the
United States at New York, New York, on January 27, 1996 with a
visitor for business visa that authorized her to remain for one
month. She overstayed, and on June 30, 1999, the Immigration and
Naturalization Service ("INS")1 issued a Notice to Appear charging
Toure with removability under § 237(a)(1)(B) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1227 (a)(1)(B), for remaining
in the United States for a time longer than permitted.
At a hearing before an Immigration Judge on January 12,
2000, Toure admitted the factual allegations against her, conceded
removability, and requested asylum, withholding of removal, and
relief under the Convention Against Torture ("CAT").
Toure presented testimony in support of her application
at hearings held on May 2, 2000 and February 21, 2001. Toure
testified that before coming to the United States, she lived in
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
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Conkary, Guinea with her father, mother, and four siblings.
Toure's father was arrested and imprisoned for five years in 1979
for speaking out against the Guinean government and organizing a
meeting against the government. While in prison, guards beat him
and subjected him to electrical shocks. During this time, soldiers
frequently came to Toure's home. Toure testified that the soldiers
tied and beat Toure and her family, yelled at them, and that on one
occasion a soldier raped Toure's cousin. Toure testified that she
has a scar on her left cheek from one of the beatings.
Toure's father was released from prison in 1984, and
continued to speak out against the government. In 1991, he was
arrested and imprisoned for one year for holding meetings without
the permission of the government. Toure left Guinea with an aunt
in 1994 and went to Ivory Coast for two months, but returned to
Guinea at her father's request. Toure testified that her father
had attempted to leave Guinea but was prevented from doing so by
the government, and that he wanted Toure to return to Guinea in
order to keep the family together.
Toure also testified that she and her father were members
of a political group called the Reunion for the People of Guinea
("RPG"). The RPG opposed the government and sought to bring
democracy to Guinea. Toure's father was the local representative
for the group. Toure testified that the group was founded "more
than ten years ago," but that in the first year of its existence,
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the group did not have a name. Toure also testified that she first
heard the name "RPG" six or seven years previously, during a
meeting at her home. Toure testified that there were 100 to 150
people at this meeting. When asked how that many people were able
to fit into her home, Toure testified that the meeting was not in
her home but in a permanent meeting place.
Toure never mentioned the RPG in her asylum application,
and gave inconsistent testimony when trying to explain this
omission at her hearing. Toure first testified that she did
mention the RPG in her application, but eventually admitted that
she did not mention the RPG in her application. Toure also
admitted that, despite her alleged membership in the RPG, she never
mentioned her own political affiliation in her asylum application.
Upon further questioning, Toure said that she did not mention the
RPG in her application because it did not have a name at that time,
even though she had already testified that the RPG received its
name six or seven years prior to her hearing. Toure finally
testified that the RPG had a name when she filled out her
application, but said she did not mention the name in her
application because she had recently been released from prison and
had "some kind of problem."
Toure testified that after she came to the United States,
she learned from her uncle that her father had been shot and killed
by soldiers in the streets of Conkary on February 2, 1996.
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However, the death certificate that Toure provided to the
Immigration Judge indicated that Toure's father died in the
hospital as the result of an accident. Toure provided no
explanation for this discrepancy.
Toure also testified that if she returns to Guinea, she
and her daughter will be forced to undergo female genital
mutilation ("FGM"). Toure testified that her sister in Guinea has
already undergone FGM. Toure's father was opposed to FGM, but
since his death, Toure's aunt (who supports FGM) has taken charge
of the family. Toure testified that FGM is customary in Guinea.
Toure also submitted documentary evidence detailing FGM practices
in Guinea.
On August 20, 1998, Toure married Louis DeStephen
("DeStephen"), also a native and citizen of Guinea, in a proxy
ceremony performed in Guinea while they were in Fall River,
Massachusetts.2 Toure knew DeStephen when they were both young and
in Guinea, but they did not begin a serious relationship until they
met in the United States. They have a daughter who was born on
August 23, 1999 in Pawtucket, Rhode Island.
On May 9, 1999, Toure was arrested and charged with bank
fraud. She pled guilty and was sentenced to two years' probation.
2
Toure testified that she is a believer in Islam, and that in her
religion, a couple can get married in their home country through
proxies. Toure and her husband decided to have this type of
ceremony because they were unfamiliar with the Islamic community in
Fall River.
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DeStephen was also arrested and eventually convicted. He entered
removal proceedings on June 18, 1999, when the INS served him with
a Notice to Appear. On May 1, 2000, Toure testified at DeStephen's
hearing. The Immigration Judge in DeStephen's hearing found that
Toure had given false testimony and was therefore not a credible
witness.
In an oral decision on June 7, 2001, the Immigration
Judge in Toure's hearing denied Toure's applications for asylum and
withholding of removal, finding that she was not a credible witness
and that she failed to prove past persecution or a well-founded
fear of future persecution. In making the adverse credibility
determination, the Immigration Judge relied on three factors: (1)
Toure's inconsistent testimony regarding the RPG, (2) the
discrepancy between Toure's account of her father's death and her
father's death certificate, and (3) Toure's prior false testimony
at DeStephen's hearing. The Immigration Judge also denied Toure's
request for relief under the Convention Against Torture, finding
that she had presented no evidence that she would be tortured in
the future by the Guinean government or with the consent or
acquiescence of a government official. Toure appealed to the BIA,
which summarily affirmed the Immigration Judge's decision on
April 18, 2003.3 This appeal followed.
3
Because the BIA did not render its own opinion, but instead
adopted the opinion of the Immigration Judge, we review the
decision of the Immigration Judge. See Settenda v. Ashcroft, 377
-6-
II. Analysis
A. Asylum
Toure bears the burden of demonstrating her eligibility
for asylum. 8 C.F.R. § 208.13(a). Toure may meet that burden by
demonstrating past persecution or a well-founded fear of future
persecution based on her "race, religion, nationality, membership
in a particular social group, or political opinion." Id.
§ 208.13(b)(1). "The testimony of the applicant, if credible, may
be sufficient to sustain the burden of proof without
corroboration." Id. § 208.13(a). To establish past persecution,
an applicant must provide "conclusive evidence" that she was
targeted on any of the five grounds. Fesseha v. Ashcroft, 333 F.3d
13, 18 (1st Cir. 2003). To show a well-founded fear of future
persecution, "the applicant's fear must be both genuine and
objectively reasonable." Aguilar-Solís v. INS, 168 F.3d 565, 572
(1st Cir. 1999). An applicant who has proven past persecution is
"presumed to have a well-founded fear of future persecution unless
the agency can prove otherwise." Fesseha, 333 F.3d at 18.
We will uphold the decisions of the Immigration Judge and
BIA if they are "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." Guzmán v.
INS, 327 F.3d 11, 15 (1st Cir. 2003)(quoting INS v. Elías-Zacarías,
502 U.S. 478, 481 (1992)). Under this standard, "[t]o reverse the
F.3d 89, 93 (1st Cir. 2004).
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BIA finding, we must find that the evidence not only supports that
conclusion, but compels it . . . ." Elías-Zacarías, 502 U.S. at
481 n.1 (emphasis in original).
1. Credibility
"[W]hen a hearing officer who saw and heard a witness
makes an adverse credibility determination and supports it with
specific findings, an appellate court ordinarily should accord it
significant respect." Aguilar-Solís, 168 F.3d at 571. In this
case, the Immigration Judge found that Toure was not a credible
witness. The Immigration Judge supported his credibility
determination with specific findings that "amply justified the IJ's
conclusion that the petitioner's testimony lacked credibility."
Id.
Toure first argues that the Immigration Judge erred by
giving substantial weight to the findings of the Immigration Judge
in DeStephen's case about Toure's credibility as a witness. That
Immigration Judge found that Toure had presented false testimony in
DeStephen's case. Toure argues that her Immigration Judge should
have made a credibility determination based only on Toure's
demeanor and testimony in her own proceeding. Further, Toure
argues that her testimony in DeStephen's case was irrelevant to her
own case. We disagree with both arguments.
Toure's Immigration Judge made several specific findings
besides the finding that Toure gave false testimony in DeStephen's
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asylum hearing. Toure's Immigration Judge discussed her
inconsistent testimony regarding the RPG and her father's death.
These inconsistencies were not minor discrepancies, but went to the
heart of Toure's credibility. See Bojorques-Villanueva v. INS, 194
F.3d 14, 17 (1st Cir. 1999)(affirming an adverse credibility
determination where multiple inconsistencies in the applicant's
story were not minor discrepancies but "went to the central facts
of the triggering event.") At most, Toure's Immigration Judge set
Toure's prior testimony "against the backdrop of the whole record
and considered [it] as one factor in his credibility
determination." See Balogun v. Ashcroft, 374 F.3d 492, 504 (7th
Cir. 2004).
Further, Toure's testimony, given under oath at
DeStephen's hearing, was relevant to Toure's case. We have stated
that an applicant's "admittedly fraudulent original application,
coupled with her rehearsed (and equally false) testimony at her
initial asylum interview, fairly illustrated her propensity to
dissemble under oath." Laurent v. Ashcroft, 359 F.3d 59, 64 (1st
Cir. 2004). While Toure did not submit an admittedly fraudulent
asylum application, her false testimony under oath in her husband's
hearing "fairly illustrated her propensity to dissemble under
oath." Id.; see also Balogun, 374 F.3d at 503-04 (7th Cir. 2004)
(finding misrepresentations made in an airport interview relevant
to an asylum applicant's credibility, even though not directly
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related to the basis of the applicant's fear of persecution,
because they showed "a propensity to dissemble and to distort the
truth when the need arises"). Since Toure's credibility was
crucial to her case, we find that evidence of her false testimony,
given under oath in connection with DeStephen's case, was relevant
to Toure's credibility in her own case.
When Toure was asked to explain her prior testimony in
her husband's case during cross examination in her own case, her
answers were inconsistent and non-responsive. Toure first stated
that she did not know anything about her husband's case. Upon
further questioning, Toure stated:
"If I understand, I am not here for you to ask
me question about my husband, I am here for
you to ask me question about my case. I do
not know anything about what you talking about
now. If you want, you can ask me questions
about my case and I am going to answer, but,
because I am not here to answer any question
about my husband."
This inconsistent and non-responsive testimony during her own
hearing raised further questions about Toure's general credibility.
We find that Toure's prior testimony was relevant to her
credibility and that Toure's Immigration Judge supported the
credibility determination with specific findings.
Toure's second argument is that she was deprived of due
process because she was not represented by counsel when she
testified at her husband's asylum hearing, since that testimony was
later used in her own hearing to support an adverse credibility
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finding. We review this claim de novo. See Aguilar-Solís, 168
F.3d at 568. While the Federal Rules of Evidence do not apply in
INS proceedings, "the less rigid constraints of due process impose
outer limits based upon considerations of fairness and
reliability." Yongo v. INS, 355 F.3d 27, 30 (1st Cir. 2004).
After reviewing the record, we find no merit to Toure's
due process argument. In the asylum context, due process gives
aliens the right to be represented by counsel, at their own
expense, in their removal proceedings. See 8 U.S.C. § 1362;
Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004). In the
instant case, Toure was represented by counsel at her own asylum
hearing. She was given a full and fair hearing and had an
opportunity to present her entire case, including an opportunity to
testify and present evidence to combat the evidence of her prior
false testimony. We are unaware of any case or statutory law that
supports Toure's argument that due process entitled her to
representation by counsel when she testified at DeStephen's
hearing. We therefore find that Toure was not deprived of due
process.
In sum, Toure's testimony at DeStephen's hearing
illustrated a propensity to testify falsely under oath. Toure's
explanations of that testimony at her own hearing only revealed
further inconsistencies and a demeanor that harmed her credibility.
In addition, her inconsistent and contradictory testimony regarding
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the RPG and her father's death was itself substantial enough to
support an adverse credibility finding.
2. Past Persecution
Toure argues that her testimony regarding her father's
persecution creates a presumption of her own well-founded fear of
persecution. In order to trigger a presumption of a well-founded
fear of future persecution, an applicant must prove that she was
persecuted because of her race, religion, nationality, membership
in a particular social group, or political opinion. 8 C.F.R.
§ 208.13(b)(1). Even putting aside Toure's lack of credibility,
Toure has not attempted to demonstrate how the alleged persecution
of her father constituted past persecution of her on the basis of
a protected ground. We find that substantial evidence supports the
Immigration Judge's finding regarding past persecution, and that
Toure is not entitled to a presumption of a well-founded fear of
future persecution.
3. Future Persecution
Toure argues that, even if she is not entitled to a
presumption of a well-founded fear of future persecution, her
testimony regarding her father's persecution and her fear of FGM,
along with her documentary evidence concerning FGM in Guinea, was
sufficient to establish a well-founded fear.4 To establish a well-
4
We note that FGM may constitute persecution under some
circumstances. See In re Kasinga, 21 I. & N. Dec. 357, 358 (BIA
1996)(stating that FGM may constitute persecution on account of
-12-
founded fear of future persecution, an asylum applicant must
satisfy a subjective and objective prong. Both prongs depend on
the applicant's credibility. To satisfy the subjective prong, the
applicant must show her fear is genuine. Fesseha, 333 F.3d at 19.
To satisfy the objective prong, the applicant "must show by
credible evidence that her fear of future persecution is
reasonable." Laurent, 359 F.3d at 65. Because Toure was not
credible, the Immigration Judge found that she did not satisfy
either prong. The evidence before us does not compel a different
result, and we therefore find that Toure has failed to establish a
well-founded fear of future persecution.
B. Withholding of Removal
Because Toure is unable to satisfy the less stringent
standard for asylum, she is a fortiori unable to satisfy the test
for withholding of deportation. Albathani v. INS, 318 F.3d 365,
374 (1st Cir. 2003).
C. Convention Against Torture
Toure's final argument is that she is entitled to relief
under the CAT because she will be tortured if returned to Guinea.
She bases this argument on her testimony and on country condition
reports regarding FGM in Guinea. To be entitled to relief under
the CAT, Toure must demonstrate that it is more likely than not
that she will be tortured if removed to Guinea. 8 C.F.R. § 208.16
membership in a particular social group).
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(c)(2). The regulations implementing the CAT define torture as
"severe pain or suffering," inflicted for one of several listed
purposes "by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity." Id. § 208.18(a)(1). The Immigration Judge
found that Toure had failed to present any evidence that she would
be tortured by the Guinean government or any agent of the Guinean
government. Toure, referring to an Amnesty International report on
FGM, argues that the Guinean government refuses to outlaw FGM and
therefore acquiesces or consents to the practice. However, this
Amnesty International report indicates that FGM is illegal in
Guinea, that the Guinean Supreme Court is working to propose a
constitutional amendment prohibiting FGM, and that several high-
level government officials have spoken out against FGM. This
evidence belies Toure's claim of government acquiescence.
Consequently, we find that substantial evidence supports the
Immigration Judge's findings as to the CAT.
III. Conclusion
For the reasons stated above, the BIA's order is
affirmed.
Affirmed.
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Toure v. Ashcroft
Court: Court of Appeals for the First Circuit
Date filed: 2005-02-03
Citations: 400 F.3d 44
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